Citation Nr: 0733032
Decision Date: 10/19/07 Archive Date: 10/26/07
DOCKET NO. 05-26 964 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Paul,
Minnesota
THE ISSUE
Entitlement to an effective date earlier than May 6, 2004,
for the establishment of service connection for post-
traumatic stress disorder (PTSD).
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
John Kitlas, Counsel
INTRODUCTION
The veteran served on active duty from June 1966 to April
1969.
This matter is before the Board of Veterans' Appeals (Board)
on appeal from an October 2004 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Paul, Minnesota, which granted service connection for
PTSD, effective May 6, 2004. The veteran appealed,
contending that an earlier effective date was warranted.
The veteran testified at a videoconference hearing before the
undersigned Veterans Law Judge in March 2006. A transcript
of this hearing has been associated with the veteran's VA
claims folder.
The Board remanded this case in May 2007 for the RO to
adjudicate the issue of whether a November 1980 rating
decision's denial of service connection for delayed stress
neurosis was the product of clear and unmistakable error
(CUE). By a subsequent June 2007 rating decision, the RO
concluded that the November 1980 rating decision was not the
product of CUE. Accordingly, the Board finds that the remand
directives have been complied with, and, as such, a new
remand is not required to comply with the holding of Stegall
v. West, 11 Vet. App. 268 (1998).
The Board further notes that the documents assembled for
review do not reflect that a Notice of Disagreement was filed
by or on behalf of the veteran with respect to the
determination that the November 1980 rating decision was not
the product of CUE. For example, the veteran's
representative noted this decision in a September 2007
statement, but did not express disagreement with the decision
nor a desire for appellate review. Therefore, the Board does
not currently have jurisdiction to address the CUE claim.
See 38 C.F.R. §§ 20.200, 20.201.
FINDINGS OF FACT
1. All reasonable development and notification necessary for
the disposition of the instant case has been completed.
2. Service connection was previously denied for delayed
stress neurosis by a November 1980 rating decision. The
veteran was informed of this decision, including his right to
appeal, and he did not appeal.
3. Following the November 1980 rating decision, the next
written communication in which the veteran indicated a desire
to file a claim of service connection for PTSD was received
by VA on May 6, 2004.
CONCLUSION OF LAW
The criteria for an effective date earlier than May 6, 2004,
for the establishment of service connection for PTSD are not
met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5110 (West 2002); 38
C.F.R. §§ 3.159, 3.400 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Board notes at the outset that VA has an obligation to
notify claimants what information or evidence is needed in
order to substantiate a claim, as well as a duty to assist
claimants by making reasonable efforts to get the evidence
needed. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107
(West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)
(2006); see also Quartuccio v. Principi, 16 Vet. App. 183,
187 (2002).
The United States Court of Appeals for Veterans' Claims
(Court) has held that adequate notice, as required by
38 U.S.C. § 5103(a), must be provided to a claimant before
the initial unfavorable agency of original jurisdiction (AOJ)
decision on a claim for VA benefits. Pelegrini v. Principi,
18 Vet. App. 112, 120 (2004). In this regard, the veteran
was sent pre-adjudication notice regarding his underlying
claim of service connection for PTSD by a letter dated in
August 2004. The Board observes that this letter discussed
VA's basic duties to assist, including what information and
evidence the veteran must submit, what information and
evidence will be obtained by VA, and indicated the need for
the veteran to advise VA of or to submit any evidence in his
possession that was relevant to the case. As such, this
correspondence fully complied with the notice requirements of
38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), as well as the
holding in Quartuccio, supra.
The Board acknowledges that the veteran has not been sent a
letter which contains the specific information regarding
disability rating(s) and effective date(s) discussed by the
Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473
(2006). However, the veteran has actively participated in
the processing of his case, and the statements submitted in
support of his claim have indicated familiarity with the
requirements for the benefit sought on appeal. For example,
in a December 2005 statement, the veteran's representative
summarized the statutory criteria for effective dates found
at 38 U.S.C.A. § 5110. In addition, by his statements and
hearing testimony the veteran has acknowledged the impact the
prior denial of November 1980 has upon his claim for an
earlier effective date. See Mayfield v. Nicholson, 19 Vet.
App. 103 (2005), reversed on other grounds, 444 F.3d 1328
(Fed. Cir. 2006) (VA can demonstrate that a notice defect is
not prejudicial if it can be demonstrated ... that any defect
in notice was cured by actual knowledge on the part of the
appellant that certain evidence (i.e., the missing
information or evidence needed to substantiate the claim) was
required and that the appellant should have provided it.);
see also Overton v. Nicholson, 20 Vet. App. 427 (2006).
All the law requires is that the duty to notify is satisfied
and that claimants are given the opportunity to submit
information and evidence in support of their claims. Once
this has been accomplished, all due process concerns have
been satisfied. See Bernard v. Brown, 4 Vet. App. 384
(1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also
38 C.F.R. § 20.1102 (harmless error). In view of the
foregoing, the Board finds that the veteran was notified and
aware of the evidence needed to substantiate this claim and
the avenues through which he might obtain such evidence, and
of the allocation of responsibilities between himself and VA
in obtaining such evidence. Accordingly, there is no further
duty to notify.
The Board further notes that adjudication of a claim for an
earlier effective date in this case is based upon evidence
already in the claims folder; the resolution of the claim
depends upon when certain document(s) were either received by
VA and/or promulgated to the veteran. Consequently, there is
no additional development that can be conducted, nor any
other records which can be obtained, which would substantiate
the veteran's claim.
The Board notes that it has thoroughly reviewed the record in
conjunction with this case. Although the Board has an
obligation to provide reasons and bases supporting this
decision, there is no need to discuss, in detail, the
extensive evidence submitted by the appellant or on his
behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed.
Cir. 2000) (the Board must review the entire record, but does
not have to discuss each piece of evidence). Rather, the
Board's analysis below will focus specifically on what the
evidence shows, or fails to show, on the claim. See
Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting
that the Board must analyze the credibility and probative
value of the evidence, account for the evidence which it
finds to be persuasive or unpersuasive, and provide the
reasons for its rejection of any material evidence favorable
to the claimant).
Legal Criteria. The effective date for the grant of service
connection for a disease or injury is the day following
separation from active duty or the date entitlement arose if
a claim is received within one year after separation from
service. Otherwise, the effective date is the date of receipt
of claim, or date entitlement arose, whichever is later. The
effective date of an award based on a claim reopened after
final adjudication shall be fixed in accordance with the
facts found, but shall not be earlier than the date of
receipt of application therefor. 38 U.S.C.A. § 5110;
38 C.F.R. § 3.400.
The VA administrative claims process recognizes formal and
informal claims. A formal claim is one that has been filed
in the form prescribed by the Secretary. 38 C.F.R. § 3.151.
Any communication or action, indicating an intent to apply
for one or more benefits, under the laws administered by VA,
from a claimant may be considered an informal claim. Upon
receipt of an informal claim, if a formal claim has not been
filed, an application form will be forwarded to the claimant
for execution. If received within 1 year from the date it was
sent to the claimant, it will be considered filed as of the
date of receipt of the informal claim. When a claim has been
filed which meets the requirements of 38 C.F.R. § 3.151, an
informal request for increase or reopening will be accepted
as a claim. 38 C.F.R. 3.155.
The provisions of 38 C.F.R. § 3.157 commence with notation of
the general rule that the effective date of compensation
benefits will be the date of receipt of the claim or the date
when entitlement arose, whichever is the later. However,
this regulation goes on to provide that receipt of clinical
reports of examination or hospitalization may serve as
informal claims "for increase or to reopen" where the claim
is for an already service-connected condition. The date of
receipt of such clinical evidence may serve to form the basis
for an earlier effective date for the subsequent award of VA
benefits if such benefits derive from (1) a claim for
increased evaluation or (2) an application to reopen a claim
for compensation denied because the service-connected
disability was not of compensable degree. Since the
veteran's appeal flows from his original claim of service
connection, the provisions of 38 C.F.R. § 3.157 are not for
application in the instant case.
"Application" is not defined in the statute. However, in the
regulations, "claim" and "application" are considered
equivalent and are defined broadly to include "a formal or
informal communication in writing requesting a determination
of entitlement, or evidencing a belief in entitlement, to a
benefit." 38 C.F.R. § 3.1(p); see also Rodriguez v. West,
189 F.3d 1351 (Fed. Cir. 1999).
The Federal Circuit, in Rodriguez, supra, pointed out that
for purposes of establishing the requirements and procedures
for seeking veterans' benefits, a claim, whether "formal" or
"informal" must be "in writing" in order to be considered a
"claim" or "application" for benefits, and that the
provisions of 38 C.F.R. § 3.1(p) define "claim," informal as
well as formal, as a "communication in writing." Further,
the Federal Circuit stated that when 38 C.F.R. § 3.155(a)
refers to "an informal claim," it necessarily incorporates
the definition of that term in 38 C.F.R.
§ 3.1(p) as a "communication in writing." The Federal
Circuit also pointed out the provisions of 38 C.F.R. §
3.155(a) make clear that there is no set form that an
informal written claim must take. All that is required is
that the communication "indicat[e] an intent to apply for one
or more benefits under the laws administered by the
Department," and "identify the benefits sought."
Analysis. In the instant case, the Board finds that the
veteran is not entitled to an effective date earlier than May
6, 2004, for the establishment of service connection for
PTSD.
The veteran essentially contends that his effective date
should be from when he filed his original service connection
claim in October 1980.
As already noted, service connection was previously denied
for delayed stress neurosis by a November 1980 rating
decision. The veteran was informed of that decision,
including his right to appeal, and he did not appeal. In
fact, he acknowledged in his July 2005 Substantive Appeal and
at his March 2006 hearing that received notice of the
November 1980 rating decision, that he was aware of the one
year appeal period, and that he did not appeal. Therefore,
that decision is final. Moreover, the Board does not
currently have jurisdiction to address whether the November
1980 rating decision was the product of CUE.
In view of the foregoing, the effective date for the
establishment of service connection for the veteran's PTSD
can be no earlier than the date of receipt by VA of his next
service connection claim. 38 U.S.C.A. § 5110; 38 C.F.R. §
3.400; see also Rudd v. Nicholson, 20 Vet. App. 296 (2006).
The Board has thoroughly reviewed the record, and finds no
written communication was received by VA in which the veteran
indicated he was seeking service connection for PTSD prior to
the current effective date of May 6, 2004. The veteran, at
his March 2006 hearing, indicated that no claim was filed
between the November 1980 denial and the claim received by
the RO in May 2004. In short, following the November 1980
rating decision, no valid claim of service connection for
PTSD was filed prior to the current effective date. See
Rodriguez, supra. Consequently, the Board finds that there
is no legal basis to assign an earlier effective date for the
establishment of service connection for PTSD. Accordingly,
the veteran's appeal must be denied.
ORDER
Entitlement to an effective date earlier than May 6, 2004,
for the establishment of service connection for PTSD is
denied.
____________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals
Important Notice: Attached to this decision is a VA Form
that provides information concerning your rights to appeal
our decision. Due to recent changes in the law, some of the
information contained in the attached notice of appellate
rights form is no longer accurate concerning the ability to
pay attorneys and agents to represent you. Some additional
information follows that summarizes the current law. To the
extent that the information contained in the attached VA Form
conflicts with the summary below, please disregard the
information on the VA Form and instead rely upon the
following information:
Do I have to pay an attorney or agent to represent me?
An attorney or agent may charge a fee to represent you
after a notice of disagreement has been filed with
respect to your case, provided that the notice of
disagreement was filed on or after June 20, 2007. See
Veterans Benefits, Health Care, and Information
Technology Act of 2006, Pub. L. No. 109-461, 120 Stat.
3403 (2006). If the notice of disagreement was filed
before June 20, 2007, an attorney or accredited agent
may charge fees for services, but only after the Board
first issues a final decision in the case, and only if
the agent or attorney is hired within one year of the
Board's decision.
The notice of disagreement limitation does not apply to
fees charged, allowed, or paid for services provided
with respect to proceedings before a court. VA cannot
pay the fees of your attorney or agent, with the
exception of payment of fees out of past-due benefits
awarded to you on the basis of your claim when provided
for in a fee agreement.
VA is in the process of amending its regulations
governing representation of claimants for veterans'
benefits in order to implement the provisions of the new
law. More information concerning the regulation changes
and related matters can be obtained at
http://www1.va.gov/OGC (click on "Accreditation and
Recognition of Service Organizations").
Fee for VA home and small business loan cases: An
attorney or agent may charge you a reasonable fee for
services involving a VA home loan or small business
loan. For more information, read section 5904, title
38, United States Code.
Filing of Fee Agreements: In all cases, a copy of any
fee agreement between you and an attorney or accredited
agent must be sent to the Secretary at the following
address:
Office of the Chief Counsel for Policy (01C3)
Board of Veterans' Appeals
810 Vermont Avenue, NW,
Washington, DC 20420
Facsimile: (202) 565-5643
(When final regulations are published to implement the
requirements of the new law, fee agreements must be
filed with the VA Office of the General Counsel and not
the Board.)
Department of Veterans Affairs